Police accused of misusing "exceptional clearance" to close rape cases
Austin, Texas — Across the country, police and prosecutors are using a term called "exceptional clearance" to close rape cases and mark them as resolved, even when there's DNA evidence that could link a suspect to an attack. Now, women in Austin, Texas are fighting back against a system they say has failed them.
Last year, 23-year-old Emily Borchardt says she was returning home when two men abducted her. "The man behind me grabs my throat and I go unconscious," she told CBS News.
She was brought to a motel, where she said a third man raped her multiple times over 12 hours. She said the man gave her cigarettes and whiskey and demanded that she shower with him.
Borchardt managed to escape, call the police and have a rape kit done. A man who was on parole after serving 20 years for murder, first claimed he did not know her. But when the DNA came back as a match, he said the sex was consensual. Borchardt's lawyers asked CBS News to blur his face for her protection. He was never arrested.
In audio obtained by CBS News, police suggested why during Borchardt's victim statement interview. One detective said, "taking a shower with him, consuming whiskey in the shower with him, you know together. It doesn't paint the best picture."
"The police act like that was consensual when really, I was trying to prevent another — from being assaulted again," Borchardt said, adding that she thought the man would kill her.
Exceptional clearance
The district attorney decided not to prosecute Borchardt's case. It fell under what law enforcement calls an "exceptional clearance." That's a classification that allows cases to be closed in circumstances beyond law enforcement control, such as if the victim is uncooperative, the offender has died, or a district attorney declines to prosecute.
According to the most recent data from the FBI's National Incident-Based Reporting System, more than 40% of closed rape cases were exceptionally cleared nationwide, giving the public the impression they have been solved.
Research that was supported by funding from the U.S. Department of Justice, analyzed data from six jurisdictions from across the U.S. It found out of every 100 cases of rape or attempted rape reported to law enforcement, there are 19 arrests. Only five of those arrests result in pleas, and one results in a guilty verdict.
Liz Donegan, who led the sex crimes unit at the Austin Police Department for nearly a decade, said exceptional clearance is "not being used correctly."
"The public's perception about exceptional clearance is that the case has been closed. It's been cleared with — we've held somebody accountable," she said.
Donegan, who is now retired, told CBS News that she refused pressure to change rape cases from "suspended" to "exceptionally cleared" to get them off the books. She was eventually transferred out of the sex crimes unit.
The office of Travis County District Attorney Margaret Moore allowed Austin police to "exceptionally clear" Borchardt's case.
"Are you ever deciding not to prosecute because you wanna keep your record the best possible because you're worried you may not get a conviction?" CBS News asked Moore.
"No. We've taken cases to trial during my administration where we've gotten 'not guiltys," but we believed in the case. The jury didn't," Moore said.
Lawsuits filed
Moore refused to discuss Borchardt's case because she, along with Austin law enforcement and elected officials, are defendants in a class-action lawsuit brought by Borchardt and seven other women who say their sexual assaults have been mishandled.
Women have filed lawsuits across the country in an attempt to force police and prosecutors to improve their practices, including in Memphis, San Francisco, Houston, Baltimore and New York City.
"Over a hundred women have called us since the lawsuit was filed. So I've heard many stories," said attorney Jenny Ecklund, who is representing the women in the lawsuit. "Unfortunately, there's a common thread in all of them, which is that the women felt disbelieved or dismissed, or like their case didn't matter, or they never got calls back."
While Borchardt's alleged rapist walks free, she's trying to cope with post-traumatic stress disorder and trauma, triggered by an experience sometimes too painful to talk about.
"It's so terrible people can't even hear it. But I have to live with it," she said. "I just want my mental health back. I just wanna bear witness to the truth and give my story."
